09 Sep · Mon 2013
The Legal Intelligencer Animal Law & Rights Issue
08 Sep · Sun 2013
Affinity Group Danger Zones
I am pleased to post my recent article for SHRM's HRMagazine:
Legal Trends Affinity Group Danger Zones
Vol. 58 No. 9
Structure affinity groups so they are lawful.
Smart organizations want to increase employee engagement and inclusion. One way to do that is through affinity groups.
What are affinity groups? They are groups of employees who have a common interest or characteristic. Sometimes the commonality is based on a factor that is not protected under equal employment opportunity (EEO) laws, such as the employees’ position. Usually, however, affinity groups are built around EEO-protected characteristics, such as race, gender and sexual orientation, and are supported financially by the organization.
There are obvious benefits to having affinity groups. They can increase morale, retention and innovation, as well as business, because of greater inclusion of diverse perspectives.
In some organizations, an affinity group may be seen as the antidote to marginalization of certain groups of employees. Affinity group meetings provide a place to experience business and social inclusion for those who are or feel marginalized.
Yet, these groups, if not structured properly, can have divisive and exclusionary effects. Moreover, there are legal risks that need to be navigated. Just because the goal of the affinity group is laudable does not mean that the group is lawful.
The following four hypotheticals highlight some of the legal and business risks of affinity groups, with recommendations on how to manage them.
Affinity Group For White Men
Employer ABC has affinity groups for women; people of color; and lesbian, gay, bisexual and transgender employees. The employer provides financial and other support for these groups so that they legally would be characterized as benefits of employment.
A group of white men asks to form an affinity group. The HR leader considers saying, "You don’t need one. You already have one; it’s called the senior leadership team," which is made up of white men but for one exception.
The emotion behind the fantasy response may be understandable, but the response is, of course, inappropriate because legal risk would accompany it. Title VII’s prohibition on gender bias knows no gender. The same is true of racial bias. Denying a benefit to employees because they are white and male is, well, discrimination. But that does not mean that the request necessarily needs to be honored.
The key for an organization is to develop upfront nondiscriminatory criteria in determining whether it will provide financial or other support for a proposed affinity group. Among the criteria an organization may consider are the following:
How will the proposed affinity group help its members achieve the company’s mission and goals?
How will the proposed affinity group increase inclusion and business development among the individuals in the group (as opposed to employees generally)?
Are other affinity groups or mechanisms already in place that serve the need addressed by the request?
Making decisions about proposed affinity groups based on the answers to these kinds of questions doesn’t eliminate all legal risks, but it does minimize them.
Let’s return to the white men at Employer ABC. If the organization’s power circle is dominated by white men, the white men seeking to form an affinity group may have an uphill battle. But would that be true for a group of entry-level employees in human resources?
There is no clear-cut answer; rather, it depends on applying legitimate nondiscriminatory factors.
If Employer ABC has an affinity group for women and not one for men, it might consider including men in a broader affinity group on gender that would focus, although not exclusively, on issues women face that men don’t.
It is not that you need men to be part of the group for legitimacy. You don’t. But men can learn from being included, and men who are enlightened about the obstacles that women often face are more likely to become mentors and sponsors for female colleagues.
In her groundbreaking book, Lean In: Women, Work and the Will to Lead (Knopf, 2013), Facebook COO Sheryl Sandberg asks how organizations can survive, let alone thrive, if they exclude half of their talent. She quotes Warren Buffett as attributing his success, in part, to competing with only half of the talent pool.
Isn’t a business going to be more successful if it doesn’t exclude half of its talent—in this case, the half that often has disproportionate power?
Sandberg specifically refers to her many male mentors and sponsors. She recognizes that men are not the enemy; explicit and implicit bias is. And men and women alike have a stake in eliminating it.
Not all champions of equal employment opportunity support affinity groups. One concern is that such groups may separate those they are designed to benefit. This legitimate concern should affect how affinity groups are structured.
Religious Group Exclusion
Your organization has myriad affinity groups but none based on religion. In response, a group of born-again Christians asks for affinity group status and funding.
You don’t check the mission statement. That’s because you have an explicit exclusion for religious groups. Is that lawful? Is it desirable?
To be clear, this is not about saying yes to a Jewish group and no to a Buddhist group. This is about saying no to all religious groups.
Federal law prohibits discrimination based on religion. If you allow groups based on gender and race but not on religion, while treating all religions the same, are you discriminating against religion?
The 7th U.S. Circuit Court of Appeals said no. To quote the court, there are "no cross-categorical" claims under Title VII. In other words, the existence of affinity groups in one category—say, gender—cannot be used as the basis for arguing that it is unlawful not to allow an affinity group in another category, such as religion. (Moranski v. General Motors, 433 F.3d 537 (7th Circuit 2005)).
But other circuits could decide differently. The 7th Circuit’s analysis has been criticized as hostile to religion. Some states could reach different conclusions as well; many states provide greater religious protections than federal law.
Moreover, religion is of vital importance to many U.S. workers. Having a blanket exclusion for religious affinity groups risks alienating people of faith. Even if it is lawful for organizations to exclude religious affinity groups, they do so at their own peril: They risk alienating too much talent.
For those reasons, religious affinity groups should be allowed. The criteria that apply to affinity groups organized around gender and race should apply to them, too.
Nonetheless, there are some requirements that employers may wish to impose on religious affinity groups, such as that the group’s purpose cannot be to proselytize other workers. Appropriate limitations, rather than blanket exclusions, are the solution.
Your company has an affinity group for those who identify themselves as racially diverse. It is principally, though not exclusively, made up of black and Latino employees. Some of the group members are managers.
During conversations, a few group members allege that a manager has made racist remarks. They further note that he gives plum assignments to white employees only.
Wanting the group members to feel comfortable, the managers in the room respect the employees’ wishes and do not report what they have heard.
Later, one of the employees is let go for poor performance. He claims race discrimination and notes in his allegations that management was aware of his concerns and did nothing. Where did management learn of these concerns? In the affinity group.
Managers who participate in affinity groups may place themselves in a Catch-22. They want to encourage open dialogue, but if the dialogue includes allegations of unlawful conduct, they cannot ignore what they know.
If they know it, their knowledge is imputed to the organization. While it is not always clear what an organization’s leaders must do, they cannot do nothing when they learn of potentially unlawful conduct.
To minimize this risk, you may want to make clear that the purpose of the affinity group is not to raise individual concerns and that employees who have them should refer to the employer’s EEO policy and use its complaint procedure.
Further, managers should be careful not to make absolute assurances of confidentiality that they may not be able to honor.
Of course, stating the rules is easier than determining whether a particular comment is a complaint that must be investigated. But you can minimize the risk, even if you cannot eliminate it, by setting parameters upfront.
Your affinity group of older employees develops a list of proposed changes to the organization. Management listens to the employees and decides to implement some of the changes.
While this sounds like a management success story, it may violate the National Labor Relations Act (NLRA).
Section 8(a)(2) of the NLRA makes it an unfair labor practice for an employer to "dominate or interfere with the formation or administration of any labor organization or contribute financial or other support." The term "labor organization" has been interpreted broadly to include a variety of employee participation committees or groups that "deal with" an employer.
It could include affinity groups. Yes, the NLRA could make it harder to achieve equal employment opportunity, the linchpin of affinity groups.
Remember that the statute applies to union and nonunion employees alike. Employees are defined to exclude individuals who are considered supervisors and managers under the NLRA.
You could avoid any NLRA risk by limiting membership in your affinity groups to supervisors and managers. But then why have the groups at all? So, assuming you include employees, how do you manage the risk?
Typically, there is no on-off switch that determines when an affinity group becomes a labor organization at risk of unlawfully "dealing with" the employer. But there are a number of steps you can take to minimize the risk that your affinity group will be a labor organization and that your meeting with and considering its proposals will violate the NLRA as interpreted by the National Labor Relations Board.
You could make clear that the group is not authorized to offer any recommendations to management. Then you would avoid any chance of "dealing with" management. But that may diminish the affinity group’s effectiveness.
If you are going to allow the affinity group to make suggestions, you should stress that it is making suggestions only—just as any individual or group can—which management can consider or reject at its sole discretion. No bargaining sessions, please!
You absolutely should make clear that each member of the affinity group speaks for himself or herself and that the group is not representing those who share its defining attribute. In other words, the group does not perform a representative role. This is important not only for legal reasons but also for business reasons. Employees of a particular gender, race or sexual orientation are not monolithic in their perspectives, and some people may resent having others speak for them.
There are other steps you can take to minimize the legal risk, but they are beyond the scope of this article. The point for now is to be aware that the risk exists and that it should be managed.
Jonathan A. Segal is a contributing editor of HR Magazine and a partner at Duane Morris LLP in Philadelphia. Follow him on Twitter @Jonathan_HR_Law.
This articles does not constitute legal advice, pertain to specific factual situations or create an attorney-client relationship.
04 Sep · Wed 2013
Is "Management Rights" An Oxymoron?
I am pleased to post my most recent blog for SHRM's We Know Next.
Follow me on Twitter at: @Jonathan__HR__Law
THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO A SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.
30 Aug · Fri 2013
Is Goat Killing Leave A Reasonable Accommodation? Maybe
The law is clear employers must make reasonable accommodations with respect to religious beliefs, practices or observances of which they are aware, subject to a narrow undue hardship defense. Easy to state but sometimes harder to apply.
For example, is goat killing leave a reasonable accommodation? Uh, maybe!
Here’s the background. An employee’s father died. The employee said he needed to travel to Nigeria for the funeral. He said that he believed that if he did not perform certain rituals, his siblings would die, too.
What were the rituals? Slaughtering 5 goats.
The employer said the time away was too long and denied the request. Employee sued.
The employer won at the trial court. But, on appeal, the case was sent back to the trial court to see if funeral leave was a reasonable accommodation.
The appellate court said the reference to funeral ritual was enough to put employer on notice that the funeral leave may have been for religious reasons.
Should an employer really have to ask if the funeral ritual is religious? A bit intrusive?
What if employee wanted a month off? Would that be unreasonable? If yes, where do we draw the line?
And does slaughtering one of God’s creatures not for food or warmth but for sacrifice play any role in this? What if the employer’s religious beliefs are that animal sacrifice is wrong?
Could we all agree ritual murdering is an undue burden?
Since that is not going to happen, if an employee asks for time off because of death, listen carefully as to why
They want time to be with loved ones? Feel free to say No
They want time to kill goats? Say No at your peril
When we extend the law to extreme, we trivialize its protections.
And so the court did.
THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING T O SPECIFIC FACTUAL SITUATIONS OR AS ESTABLISHING ATTORNEY-CLIENT RELATIONSHIP
29 Aug · Thu 2013
Mad About Mad Men
As originally published by SHRM's "We Know Next," found here.
Mad About Mad Men
By: Jonathan A. Segal
Sexism is more than illegal. It is immoral and bad business.
There is more than a little bit of sexism in the roles portrayed in Mad Men. So why are so many of us crazy about the show, even though we deplore the sexism that is part of it?
Of course, it is a TV show and not real life. And, the characters are not only psychologically interesting but also physically attractive.
And, there is great writing and acting. The sex doesn’t hurt, either. I hear it sells!
But I think there may be something else going on. But perhaps not consciously.
Today, fortunately, the stereotypic constraints for women (and men) are breaking down. And, that is all good. But it can also be confusing for supervisors and subordinates alike as they try to navigate life at the office.
Obviously, sexism in not entirely gone. Some men still visit strip clubs while away on business. But only a knuckle dragger who has no place in the modern workplace would suggest that women should go along to get along.
But when roles are not clear, and the bias that exists is unconscious or covert, it creates ambiguity. With ambiguity comes anxiety.
While there is psychological complexity in Mad Men, there is not a lot of ambiguity in terms of gender roles. And, perhaps one of the reasons we are fascinated by it is because we are seeking a workplace that’s a little less ambiguous, even though it is deeply flawed in its clarity.
Don Draper is the likeable but the licentious alpha male who pursues and gets what he wants from his workplace, economically as well as sexually. In contrast, Red is well...Red. In addition to how she presents herself in the workplace, she makes sure that the other women "know their place" in the workplace.
All accept their gender-defined roles, except for Peggy. She will not accept the gender role assigned to her. She is ambitious and we will see soon how far her ambition takes her.
But Peggy struggles with her own ambition. And those in the 1960 Boys’ Club around her struggle with her ambition, too.
The ambivalence in and about Peggy still exists in our workplaces today. Yes, it is less conspicuous and often unconscious, but we deceive ourselves if we believe it is not there.
Assertive women still face unfair “Catch-22s” every day. Be directly assertive and you may be branded with Scarlett B. Be more indirect and you may be seen as weak and/or underhanded.
And, many men are confused by the sea change. How should we behave?
I recently gave a talk for executives about gender bias. After the talk, I took the elevator down to the lobby with some of the participants. When the door opened, no one knew what to do. I had a “brilliant” suggestion: those closest to the opening leave first.
So we look with distaste at the sexism and all that which goes with it. But, perhaps, we also yearn, to some degree, for greater clarity. Guess what: we can’t have it.
Stereotypes define roles. We now need to define our roles for ourselves without society unfairly assigning them to us.
The freedom is of course liberating and for the best. But it is not without some anxiety.
But, take a break from anxiety, and enjoy Mad Men this weekend. I know I will.
The author, a partner with Duane Morris in Philadelphia and managing principal of the Duane Morris Institute, focuses on counseling, training and strategic planning to minimize litigation and unionization.
THIS ARTICLE SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS CREATING AN ATTORNEY-CLIENT RELATIONSHIP
28 Aug · Wed 2013
NLRB's Trojan Horse
I am pleased to post an article by Allen Smith of SHRM on "Micro Units." I am honored to have been interviewed for it.
BLOG DOES NOT CONSTITUE LEGAL ADVICE, APPLY TO SPECIFIC FACTUAL SITUATIONS OR ESTABLISH ATTONEY-CLIENT RELATIONSHIP
26 Aug · Mon 2013
For Men and Women Who Care About Male Colleagues
We moved our October 15 event, Lean In Dialogues, to another center city location. Easy access in and out of city. See below.
We are filling up the magnificent space very fast. Only concern: not as many men have signed up, as of now, as we had hoped.
Smart men know that they benefit from gender equality . Smart men also would benefit in hearing what women in power may never have told them; you’ll hear it here. We have seen many men felled because they made mistakes that could have been avoided.
If interested, please register ASAP
Women: of course, the same invite is extended to you but I had to get the attention of the men.
If interested, please e-mail Taylor that you are registering. Taylor’s email address is email@example.com
We effectively have changed forum 3 times to meet demand. We need to monitor attendance because we cannot change again.
Note the panel. True honor to facilitate.
16 Aug · Fri 2013
Documentation In Health Care: Knife in the Malpractice Claim?
In the employment context, we often hear “document, document, document.” But keep in mind that the documentation you write to employees to reflect problems with their performance or behavior later can be used against you in a medical malpractice claim.
Let’s assume you have a doctor and his level of care does not meet standard. And, let’s further assume he should be terminated.
If you terminate him for sub-quality care, providing multiple examples, that label, and accompanying examples, may be used against you in a medical malpractice claim involving that doctor.
What if you say instead, the doctor failed to provide the optimal care we demand with only a fewer less extreme examples and making clear that they are only examples (so you can still raise others). You can still argue that the care, while not optional, was not negligent.
Is sub-optimal as strong as sub-standard in defending an EEO claim? Probably not.
But we need to look not only at EEO but also malpractice risks. Almost always, potential liability in medical malpractice cases is higher than in employment cases.
This is but one many documentation errors that health care providers can make when managing employees. With training, managers are better able to nuance the reason for termination so they can defend a wrongful discharge claim without writing what may be a smoking gun for plaintiffs’ lawyers in a malpractice claim.
Follow me on Twitter at: Jonathan__HR__Law
THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.
08 Aug · Thu 2013
In Defense Of Sheryl Sandberg
17 Jul · Wed 2013
DMi Presents: A Dialogue About Leaning In
In her provocative and vitally important book,
Lean In: Women, Work, and the Will to Lead, Sheryl Sandberg ends with:
"My goal is that this book is not the end of the conversation but the beginning."
We will continue the conversation with a panel composed of
successful women who are role models for women and men alike. Please save the date!
Tuesday, October 15, 2013 | 4:00 p.m. to 6:00 p.m.
Reception immediately to follow.
For details about the event, and the people scheduled to present,
as well as a link to register, Click Here.
15 Jul · Mon 2013
She’s Too Sexy For Her Job
The all-male Supreme Court of Iowa re-affirmed its holding that an employer did not engage in sexual harassment when an employee was fired by her boss because he found her sexually irresistible. He was afraid that, if she remained employed, he would not be able to control the temptation to have a sexual relationship with her in violation of his marital vows.
The Court held this was not because of her gender but because of his “feelings” specific to the employee. But wouldn’t that same analysis apply to quid pro quo harassment? Quid pro quo harassment occurs, among other circumstances, where an employer fires a particular employee because she or he refuses to submit to “sexual feelings” that a manager has for her or him.
In both cases, the manager’s actions are based on feelings. In both cases, those feeling relate directly to gender.
How can it be unlawful to terminate an employee because she won’t pull down a manager’s zipper but lawful to terminate an employee because the manager is afraid he will pull down his own zipper?
Not everything unfair is unlawful. But, in this case, I would be surprised if the unfairness were not deemed unlawful by the EEOC under federal law.
PLEASE FOLLOW ME ON TWITTER AT: JONATHAN__HR__LAW
HIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR CREATING AN ATTORNEY-CLIENT RELATIONSHIP
10 Jul · Wed 2013
Boys Without A Club
My most recent blog, Boys Without A Club: http://www.weknownext.com/blog/boys-without-a-club
Published by SHRM's WeKnowNext.
This blog does not constitute legal advice, create an attorney-client relationship or apply to specific factual situations
28 Jun · Fri 2013
Supreme Court’s Affirmative Action Case: Not About But Entirely About Employment
In Fisher, SCOTUS upheld (at least technically) affirmative action in higher education. While the Court reaffirmed that student body diversity could be a compelling state interest, the Supreme Court has made the burden so high for a program to be "narrowly tailored" that the Court has all but gutted "honest" affirmative action.
What about employment? While the Supreme Court’s case has nothing to do with employment, it has everything to do with employment. Same decision makers!
Historically, SCOTUS has offered more flexibility for voluntary affirmative action in education than in employment. And, now, SCOTUS has made it even harder in education.
SCOTUS has never upheld voluntary affirmative action in employment absent a remedial purpose (narrowly defined). The lower courts have held almost unanimously, if not unanimously, that, in the absence of a remedial purpose (narrowly defined), employers cannot give race, gender, etc. a "plus," even where the goal is laudable, that is, to create a culturally-diverse workforce.
What does this mean for diversity programs? It means employers, now more than ever, must do two (2) things:
From a business perspective, make sure their legal hiring, promotional, mentoring, etc. practices are inclusive and tap into the talent in diverse communities.
From a legal standpoint, focus on diversity in experience, perspective, contacts, etc. and not race, gender or other protected factor.
Please e-mail me at firstname.lastname@example.org for articles that address the above two points in more detail.
Please follow me on Twitter at Jonathan__HR__Law.
This blog should be construed as legal advice, creating an attorney-client relationship or applying to specific factual situations.
03 Jun · Mon 2013
Jason Collins: Who Will Come Out Next?
I am pleased to post my most recent blog for SHRM's WeKnowNext: http://www.weknownext.com/blog/jason-collins-who-will-come-out-next. This blog focuses on how to respond if and when an employee comes out to you.
This blog should not be construed as legal advice, as establishing an attorney-client relationship or as pertaining to factual situations.
Employers in the Crossfire
From SHRM's HRMagazine
Employers in the Crossfire
Last year’s massacre at Sandy Hook Elementary School in Connecticut was beyond tragic—and there have been more school shootings since then. In response, lawmakers in Washington have launched a game of political football.
But this isn’t about political wrangling around gun control; it’s about guns in places like schools and worksites. In addition to school shootings, there have been many fatalities caused by people turning their guns on colleagues at work.
According to the U.S. Bureau of Labor Statistics, about 78 percent of the approximately 518 workplace homicides in 2011 were gun-related.
In just the last few months of 2012, there were several tragic examples:
In September, a Minneapolis man who had been discharged opened fire in the company break room, killing five former co-workers before committing suicide.
In November, a man who was about halfway through his shift at a Fresno, Calif., meat processing plant pulled out a handgun and shot four co-workers, killing two before taking his own life.
Eleven days after that incident, a worker at a food producer in Indianapolis shot and killed a co-worker and then himself.
These are not the only examples of workplace homicides carried out with guns in 2012.
Rights vs. Risks
A comprehensive plan to prevent and respond to workplace violence goes beyond a rule on firearms in the workplace, but such a rule remains a critical component.
Of course, most gun owners would never consider using their weapons unlawfully, let alone do so. Those individuals should not be maligned. At the same time, we cannot ignore the inherent risks that firearms pose to employees in the workplace.
Think about what happens when you terminate an employee. He or she may be angry. If his or her temper is hot enough, a cool-down period may be needed to prevent a violent reaction. Access to a firearm in the company parking lot could cut short that cool-down period.
But can employers ban firearms in their workplaces and in motor vehicles in their parking lots? What if an employee has a license to carry the firearm?
Employees 21 and older have the right to drink, but employers still can ban alcohol from the workplace. Are firearms any different?
Some say yes, citing the Second Amendment. However, the scope of the protections it guarantees is not clear. Yet, the Second Amendment clearly applies only to restrictions imposed by the government—not private-sector employers.
States’ Statutory Rights
While private-sector employees have no constitutional right to bring weapons to work, some may have statutory rights. Twenty states have passed laws that protect, to varying degrees, the rights of employees and others to carry firearms on an employer’s premises. Tennessee’s legislation takes effect in July. In most cases, an employee’s right to bring a firearm onto an employer’s premises is limited to keeping the weapon in his or her motor vehicle.
Texas Labor Code Section 52.061 serves as a good example of these laws. It states:
“No employer may prohibit an employee who holds a license to carry a concealed handgun, who otherwise lawfully possesses a firearm, or who lawfully possesses ammunition, from transporting or storing a firearm or ammunition in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the employer provides for employees.”
There has been litigation about whether laws that allow employees to possess weapons on an employer’s property are inconsistent with, and therefore preempted by, the U.S. Occupational Safety and Health Act. The act’s general duty clause provides that each employer “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
Employers won one case at the district court level, when the court held that the state law was pre-empted by the general duty clause. But this decision was overruled, and employers have yet to win another case.
In 2009, in Ramsey Winch Inc. v. Henry (555 F.3d 1199), the 10th U.S. Circuit Court of Appeals ruled in 2009 that the general duty clause does not pre-empt state law, disallowing the maintenance or enforcement of policies prohibiting the transportation or storage of firearms in vehicles on private property. The circuit encompasses Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.
Also, in a 2008 case, Florida Retail Ass’n Inc. v. Att’y Gen. (576 F. Supp. 2d 1281), a Florida district court held that the general duty clause does not pre-empt Florida’s guns-at-work law. The state law allows employees with concealed-weapons permits to keep guns locked in their vehicles while at work.
As of April, legislatures in at least 12 additional states were considering laws that would restrict the right of employers to prohibit employees and others from possessing firearms on their property and in their parking lots.
Pennsylvania legislators were pondering one of the most restrictive measures. House Bill 448 would allow an employee to possess a firearm locked in or “locked to” a private motor vehicle. The plain language would suggest that an employee could have his or her hunting rifle in plain view.
If enacted, to whom would this bill potentially pose the greatest risk? Hint: Which department is involved in most terminations?
Again, most hunters are law-abiding individuals. But if a gun is visible, anyone with a lock cracker can get ahold of and use the gun. As noted at the outset, this article is not about a political issue; it is about a workplace issue. However, political issues turn into legal ones when legislation is enacted, so employers need to be aware of gun laws in states in which they operate.
HR professionals may want to speak up when gun-related issues arise in their state legislature. After all, those in HR are involved in more terminations than other managers.
The Society for Human Resource Management’s position is this:
SHRM opposes any restrictions on the right of employers to determine their own worksite policies regarding weapons on company property (including parking lots). SHRM’s position in no way involves the broader issues of gun control or gun ownership.
Assessing Your Policy
With this background, employers are well-advised to look at their rules on weapons.
How do you define weapons? Yes, the definition should include guns, but it should not be so limited. A machete has no place in the workplace, either. While we cannot ignore guns, to focus solely on them creates significant risk of violence.
If you have an exception for security guards, what steps are you taking to ensure that they are hired or engaged only after being screened with appropriate background checks? What guidelines and supervision do you have in place to minimize the risk of guards improperly using the weapons you may allow them to possess? Of course, be careful not to back into a discrimination claim. U.S. Equal Employment Opportunity Commission officials are looking closely at employers’ use of background checks.
This article is not about the right to bear arms. I leave it to the courts to determine that right.
This article is about the right of employees to have safe workplaces. Protecting that right is the responsibility of employers.
Jonathan A. Segal is a contributing editor of HR Magazine and a partner with Duane Morris LLP in Philadelphia
THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP